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Rule 203. Failure of Party or Witness to Attend or to Serve Subpoena; Expenses (1984)

TEXT

1. Failure of Party Giving Notice to Attend. If the party giving the notice of the taking of an oral deposition fails to attend and proceed therewith and another party attends in person or by attorney pursuant to the notice, the court may order the party giving the notice to pay to such other party the reasonable expenses incurred by him and his attorney in attending, including reasonable attorney fees.

2. Failure of Witness to Attend. If a party gives notice of the taking of an oral deposition of a witness and the witness does not attend because of the fault of the party giving the notice, if another party attends in person or by attorney because he expects the deposition of that witness to be taken, the court may order the party giving the notice to pay to such other party the reasonable expenses incurred by him and his attorney in attending, including reasonable attorney fees.

This is a new rule by order of Dec. 5, 1983, eff. April 1, 1984. This is former Rule 215b with modification.

ADVISORY OPINIONS

(No. 74) Question: Where a commission has been duly issued by the clerk of the court to a notary public for taking of an oral deposi­tion, is the subpoena to obtain the presence of the witness to be issued by the notary public, to whom the commission has been issued, or else to be issued by the clerk of the court who issued the commis­sion (to wit, the clerk of the court in which the suit is pending)?

Answer: We think the commission should be issued by the notary public in accordance with Article 3757 of the Re­vised Statutes, which was not repealed by the adoption of the rules. This article provides in substance that the officer (meaning the officer to whom the com­mission for taking of the oral deposition is addressed, which is defined in Rule 203, and which is old Article 3756, unchanged) "shall have the same power and authority to enforce the attendance of the witness and to compel him to testify, as in cases of written interrogatories.” Under Rule 195 (which is old Article 3747, un­changed) the officer holding a commis­sion for the taking of a deposition on written interrogatories has the authority "to issue a subpoena to the sheriff or any constable of the county requiring him to summon the witness to appear and answer interrogatories at the time and place named in the subpoena." The first part of Rule 201 reading:

"Any person may be compelled to appear and depose in the same manner as witnesses may be com­pelled to appear and testify in court… "

is cumulative of Article 3757 and does not relate particularly to the method of compelling the attendance of the witness, but rather defines the scope of the power of the officer over the witness as being that generally possessed by the court.

The question does not involve contempt proceeding for non-appearance and of course the opinion does not apply to that subject.

5 Tex. B.J. 465 (1942) reprinted in 8 Tex. B.J. 29 (1945).